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As filed with the Securities and Exchange Commission on May 5, 1995
Registration No. 33-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT
of 1933
_______
TRICARE, INC.
(Exact name of Registrant as specified in its charter)
Delaware 33-0378756
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
_______
3353 Peachtree Road
Suite 1000
Atlanta, Georgia
(Address of Principal Executive Offices)
30326
(Zip Code)
_______
BOTTOMLEY AND ASSOCIATES, INC.
1991 STOCK OPTION PLAN
(Full title of the plan)
_______
David W. Murphy
3353 Peachtree Road
Suite 1000
Atlanta, Georgia 30326
(Name and address of agent for service)
(404) 364-8000
(Telephone number, including area code, of agent for service)
Copy to:
Lisa A. Stater, Esq.
Jones, Day, Reavis & Pogue
3500 One Peachtree Center
303 Peachtree Street, N.E.
Atlanta, Georgia 30308
Approximate date of commencement of proposed sale to public: As soon as
practicable following the effective date of this Registration Statement.
Exhibit Index Appears
on Page 8 of 8 Pages
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
Proposed Proposed Maximum
Title of Amount to Maximum Aggregate Amount of
Securities to be Offering Price Offering Registration
be Registered Registered Per Unit(1) Price(1) Fee(1)
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 682,622 $0.15 $102,393.30 $100.00
$.01 par value shares
</TABLE>
____________
(1) Estimated pursuant to Rule 457(h) solely for the purpose of
calculating the registration fee, and computed based upon the price at
which options may be exercised. All shares are subject to outstanding
options. The calculation of the registration fee yielded an actual
fee of $35.31; the minimum registration fee of $100.00 is therefore
filed herewith.
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EXPLANATORY NOTE
In accordance with the Note to Part I of Form S-8, the information
specified by Part I of Form S-8 has been omitted from this Registration
Statement on Form S-8 for offers of shares of the Common Stock of TriCare, Inc.
(the "Company") pursuant to the Bottomley and Associates, Inc. 1991 Stock
Option Plan.
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TRICARE, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM NO.
3. Incorporation of Documents by Reference.
The Company hereby incorporates by reference into this Registration
Statement the following documents:
(a) The Company's Annual Report on Form 10-K for the transition
period ended December 31, 1994.
(b) All other reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act since December 31,
1994.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission
on January 8, 1990.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the filing of a
post-effective amendment which indicates that all securities have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents.
4. Description of Securities.
Inapplicable.
5. Interests of Named Experts and Counsel.
Inapplicable.
6. Indemnification of Directors and Officers.
Article VII of the Company's Certificate of Incorporation provides
that to the fullest extent permitted by the Delaware General Corporation Law
(the "GCL"), a Director of the Company shall not be liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability for any: (i) breach of the Director's duty of
loyalty to the Company or its stockholders, (ii) acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the GCL, or (iv) for any transaction from which the
Director derived any improper personal benefit.
The Company's Bylaws (Article XIII) indemnify any person who was or is
a party or who is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
or investigative (other than an action by or in the right of the Company), by
reason of the fact that he is or was a director, officer, employee or agent of
the Company or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against all expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. Under
this section of the Bylaws, the termination of any action, suit or proceeding
by judgment, order,
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settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that a person did not act in any
manner which such person reasonably believed to be in or not opposed to the
best interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such person's conduct was
unlawful.
The Bylaws also provide that expenses incurred by any officer or
director in defending a civil or criminal action, suit or proceeding may be
paid in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Company as authorized in the Bylaws. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate. The Company
and its officers may purchase insurance on behalf of any person who is or was a
director, officer, employee or agent of the Company, or serving in that
capacity for another entity at the request of the Company, against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Company would have the
power to indemnify him against such liability under the Bylaws.
With respect to indemnification of officers and directors, Section 145
of the GCL provides that a corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of the fact that he is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe this conduct was unlawful.
Furthermore, the GCL provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation and except
that no indemnification shall be made in respect or any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such court shall deem proper.
The Company has entered into indemnification agreements with its
directors and officers intended to provide indemnification to the full extent
permitted under Delaware law.
7. Exemption from Registration Claimed.
Inapplicable.
8. Exhibits.
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Exhibit
Number Description
------- -----------
4 Bottomley and Associates, Inc. 1991 Stock Option Plan
(incorporated by reference to the Registrant's Form 10-K for
the transition period ended December 31, 1994).
5 Opinion of counsel for the Company.
23(a) Consent of counsel for the Company (contained in Exhibit 5).
23(b) Consent of Arthur Andersen LLP.
23(c) Consent of Miller Ray Healey & Houser.
24 Power of Attorney. Reference is made to the Signature Page,
Page II-7 of the Registration Statement.
9. Undertakings.
1. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Exchange Act)
that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
2. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
3. The undersigned Registrant undertakes to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration statement.
4. The undersigned Registrant undertakes that, for the
purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
5. The undersigned Registrant undertakes to remove from
registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of
the offering.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on this 4th day of
May, 1995.
TRICARE, INC.
By:/S/ Larry G. Gerdes
-----------------------
Larry G. Gerdes
President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Larry G. Gerdes and David W. Murphy,
jointly and severally, his true and lawful attorneys-in-fact each, with full
power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any amendments to this Registration Statement, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/S/ Donald L. Lucas Chairman of the Board May 4, 1995
---------------------------------
Donald L. Lucas
/S/ Larry G. Gerdes President, Chief Executive Officer and May 4, 1995
--------------------------------- Director (Principal Executive Officer)
Larry G. Gerdes
/S/ David W. Murphy Vice President of Finance, Chief May 4, 1995
--------------------------------- Financial Officer, Secretary and
David W. Murphy Treasurer (Principal Financial
Officer)
/S/ Lois A. Ruhnke Controller (Principal Accounting May 4, 1995
--------------------------------- Officer)
Lois A. Ruhnke
/S/ Stephen F. Bullock Director May 4, 1995
---------------------------------
Stephen F. Bullock
/S/ Walter S. Huff, Jr. Director May 4, 1995
---------------------------------
Walter S. Huff, Jr.
/S/ Charles E. Thoele Director May 4, 1995
---------------------------------
Charles E. Thoele
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description
4 Bottomley and Associates, Inc. 1991 Stock Option
Plan (incorporated by reference to the Registrant's
Form 10-K for the transition period ended December
31, 1994)
5 Opinion of counsel for the Company
23(a) Consent of counsel for the Company (contained in
Exhibit 5)
23(b) Consent of Arthur Andersen LLP
23(c) Consent of Miller Ray Healey & Houser
24 Power of Attorney. Reference is made to the
Signature Page, Page II-7 of the
Registration Statement.
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Exhibit 5
May 2, 1995
TriCare, Inc.
3353 Peachtree Road
Suite 1000
Atlanta, Georgia 30326
Gentlemen:
We have served as counsel to TriCare, Inc. (the "Company"), a Delaware
corporation, in connection with the registration under the Securities Act of
1933, as amended, pursuant to the Company's Registration Statement on Form S-8,
of a proposed offering of 682,622 shares of the Company's Common Stock, $0.01
par value (the "Shares"), issuable pursuant to the Bottomley and Associates,
Inc. 1991 Stock Option Plan (the "Plan").
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of rendering this opinion. Based upon and
subject to the foregoing, we are of the opinion that the Shares will be, when
issued in accordance with the Plan, duly authorized, validly issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Company's Registration Statement on Form S-8.
Very truly yours,
/S/ JONES, DAY, REAVIS & POGUE
JONES, DAY, REAVIS & POGUE
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Exhibit 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our reports dated February 17, 1995
included in the Company's December 31, 1994 Form 10-K and to all references to
our firm included in this Registration Statement.
/S/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Atlanta, Georgia
May 1, 1995
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Exhibit 23(c)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 15, 1993
included in the Company's December 31, 1994 Form 10-K and to all references to
our firm included in this Registration Statement.
/S/ MILLER RAY HEALEY & HOUSER
MILLER RAY HEALEY & HOUSER
Atlanta, Georgia
May 1, 1995
